Premium Processing fees are technically optional, but frequently paid to increase the speed of adjudication from several months to potentially as little as two (2) to four (4) weeks. This program was suspended and unavailable for many H-1B categories over the last 6-12 months during which time such professionals and their employers nervously witnessed (or were impacted by) adjudication delays of approximately 4-12+ months, as well as USCIS’s frequent internal changes to its adjudication criteria which allowed it to issue bizzare numbers of queries and denials of H-1B petitions in 2018.

The overall average case processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.•USCIS processed 94 percent of its form types—from green cards for family members to visas for human trafficking victims to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.•Case processing times increased substantially in FY 2018 even as case receipt volume appeared to markedly decrease.Other agency data lays bare a USCIS “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over the span of one year despite only a four percent rise in case receipts during that period.

H-1B professionals and their employers have an interest in adjudications free of undue delay, and because they are effectively required to do so, they will pay more. These parties have been significantly impacted by “BAHA” Executive Order and thus appreciate the security that comes with a final decision “in-hand”, to travel, change employers, get married, renew a drivers license, or in general, to live a slightly less uncertain life on foreign soil. Ultimately, it is all about perspective: an American would likely consider paying “base” government fees of up to $6,450.00 per H-1B petition more than sufficient to fund an adjudication that is timely, just, and logical. But H-1B workers and their employers are overjoyed at the opportunity to pay $1,410.00 more to USCIS for nothing more than a timely decision.

The Department of Homeland Security (DHS) appears to be contemplating a major change to 6+ year H-1B Extensions, an act that would have major implications in the lives of the approximately 1 Million H-1B holders in the U.S. who are waiting for a green card. To effect such a change, all DHS would need to do is continue its policy of reinterpreting any language and/or guidance it considers imprecise in a way that negatively affects the H-1B visa program. And in this case it apparently seeks to reinterpret the words “may grant” in AC21 Section 104(c), a provision that allows for up to three (3) year H-1B Extensions for certain I-140 holders (mainly Indian nationals, coincidentally). Such a reinterpretation would allow DHS to effectively neuter H-1B extensions under AC21 Section 104(c), however, because DHS does not currently appear to be able to reinterpret the word “shall” in AC21 Section 106(a), one (1) year H-1B Extensions should remain untouched and available.

A reinterpretation of AC21 Section 104(c) by DHS, if undertaken, would align harmoniously amongst its other recent attempts to make H-1Bs prohibitively complicated, expensive and more frequently subject to DHS’ scrutiny (i.e. the trending query of the month). That stated, please note that the American Immigration Lawyers Association (AILA.org) has indicated that DHS has not issued a formal announcement about any such change, that such a change would require a formal rulemaking procedure, and lastly, that such changes could be subject to litigation.

Ultimately, instead of scapegoating Srinivas from Hyderabad for daring to fill one of the 480,000 open computing jobs nationwide, we should be asking ourselves why Suzy from Ohio is majoring in Italian Art History instead of Computer Engineering. There is a very real and obvious problem with education in our country, but it is not the H-1B Program or H-1B workers, rather, the issue is that We. Are. Not. Producing. Enough. STEM. Workers.

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BELOW VIA AILA.ORG

Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process have been met. These two provisions are summarized below:

H-1B EXTENSION BEYOND SIX-YEAR LIMITATION UNDER AC21

AC21 Provision

Section 104(c)

Section 106(a)

Requirements for an H-1B Extension beyond the Sixth-Year

Enables a three-year H-1B extension beyond the six-year maximum period if an H-1B worker:

(i) has an approved employment-based immigrant visa petition (I-140 petition) under the EB-1, EB-2, or EB-3 visa category, and

(ii) is eligible to be granted lawful permanent resident status but for per country limits on visa availability.

(i) 365 days or more have passed since the filing of a labor certification application on the H-1B worker’s behalf, or

(ii) 365 days or more have passed since the filing of an I-140 petition.

Relevant Statutory Language

Section 104(c) provides that the DHS Secretary (formerly the Attorney General) “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated.

Section 106(a) provides that the maximum six-year limit “shall not apply” to an H-1B worker who meets the requirements of this section and that the DHS Secretary “shall extend” the stay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application.

DHS is reportedly looking at whether it can stop approving H-1B extensions for H-1B workers who meet the requirements of section 104(c), by reinterpreting the “may grant” language as discretionary, and therefore that DHS may, but is not required to, approve such H-1B extensions.

Notably, as outlined above, section 106(a) of AC21 provides that the maximum six-year period of H-1B status “shall not apply” to H-1B workers who qualify for an H-1B extension under section 106(a) and that the DHS Secretary “shall extend” the stay of H-1B workers who meet the requirements in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application. This provision, with its use of the word “shall,” should be read as mandatory, and thus DHS would be required to approve the extension for those H-1B workers who met the requirements of section 106(a). As such, H-1B workers who could potentially be impacted by the reported proposed changes to AC21 section 104(c) should be able to continue to extend their H-1B status under section 106(a) of AC21, provided they have met the required milestones in the LPR process. This is even true for H-1B workers who initially did not meet the requirements of section 106(a) but who now, through the passage of time, qualify for the one-year extension.”

WASHINGTON, DC – Today, President Trump signed his latest Executive Order “Buy American and Hire American.” The American Immigration Lawyers Association (AILA) observed that while today’s announcement reflects the administration’s desire to move toward reforms to the H-1B program, there will be no immediate changes or impacts on H-1Bs. Simply put, it appears that the agencies are asked to review policies related to all visa programs and recommend changes to root out “fraud and abuse,” and to propose additional reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants.

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) denounced President Trump’s rewritten Executive Order, which is again based on the false premise that barring Muslims and refugees from coming to America will make the country safer. The ban was revised in an effort to get around the court orders that blocked the Administration from implementing the original order after it had wrought havoc throughout U.S. airports and around the world. Under the rewritten order:

The ban will be effective March 16, 2017.

Refugees are banned for a 120-day period, an effective chokehold that snuffs out the US refugee program.

The travel ban still impacts only individuals from predominantly Muslim countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), and still targets people based on their religion and nationality, though Iraq has been removed from the list of banned countries.

The ban does not apply to lawful permanent residents (green card holders) and dual nationals when traveling on a passport issued by a non-designated country. Those holding select other visas and statuses will not be affected, and waivers may be granted to others on a case-by-case basis.

William A. Stock, President of AILA noted, “Despite the administration’s assurances, this ban on refugees and nationals of these predominantly Muslim countries will not make America safer. Once again President Trump is elevating a xenophobic campaign promise over true national security protections and implementing a policy that national security professionals think is unnecessary and counterproductive. Further, refugees, other than those already approved and in transit, will remain locked out of the United States for at least 120 days, despite being extremely vulnerable and the most stringently vetted group of immigrants. Blocking thoroughly vetted families from seeking help does not befit our nation’s proud and long history of humanitarian protection and welcoming those fleeing persecution.”

Benjamin Johnson, AILA Executive Director stated, “Exempting lawful permanent residents (green card holders) and dual nationals will hopefully mean that these irrational policies will hurt fewer people, but the fact remains that this is bad policy, motivated by unfounded fear. Just like the last ban, this executive order will disrupt the lives of foreign nationals that live, work, and contribute to the U.S. and the citizen family members, community members, and businesses that depend on them. Many have already curtailed travel for scholarly research, to visit family abroad, attend a wedding, or see someone graduate because they are afraid they won’t be allowed to return. This new ban will hurt American families and businesses, and does not advance the promise of a better future for our nation.”

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” People all over the United States are rallying in opposition to this EO and showing their support for all of those individuals affected by President Trump’s EOs. AILA lawyers across the country are showing up en masse to provide legal support to those detained, as well as to families and friends waiting for their loved ones to be released.

Last night, lawyers filed actions across the country to halt the January 27 EO. A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision came out of a federal court in Massachusetts – it went a bit further and barred federal officials from detaining or removing individuals subject to the EO. Two other courts also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In the case out of Washington State, the federal judge barred the federal government from deporting two unnamed individuals from the United States.

The Department of Homeland Security put out a statement early today stating only that the agency “will comply with judicial orders.”

More clarity was provided by Secretary Kelly of the Department of Homeland Security, who released a press statement this evening clarifying how the EO applies to LPRs: “I hereby deem the entry of lawful permanent residents to be in the national interest.”

Earlier today, the American Immigration Lawyers Association indicated that it had sent a letter to Secretary of State John Kerry, Department of Homeland Security Secretary Jeh Johnson, and Director of the Domestic Policy Council Cecilia Muñoz expressing great disappointment in the September 25, 2015, changes to the October 2015 Visa Bulletin, and asking that the dates published in the September 9, 2015, Visa Bulletin be restored. The revised October 2015 Visa Bulletin rolls back the “Dates for Filing” for several visa categories, and will force many individuals and families to continue to face lengthy wait times before they can submit their applications for permanent residence.

The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).

AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail. For now, however, AILA recommends the following:

More indications of the impending avalanche of H-1B cases set to be filed for the quota which opens April 1, and of the problems caused by DOL’s iCERT website. According to AILA, The U.S. Department of Labor has been sending the following e-mail to many LCA submitters: “Due to an unusually high volume of submitted cases, one or more Labor Condition Application cases you submitted recently was certified but the courtesy email informing you of the certification was not generated. Please log into the iCERT Visa Portal System to review your recently submitted cases and retrieve the certification(s).”

Washington, DC – Yesterday, the House Judiciary Committee held its first substantive hearing of the 113th Congress on “America’s Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration.” While holding this hearing underscored the importance of immigration reform to our nation’s continued economic growth and future prosperity, for the most part the discussion failed to focus on some key issues that are vital to successful immigration reform.

“The solution to the tangled, unwieldy and dysfunctional immigration system is not a piecemeal approach, despite what several of the lawmakers and witnesses said yesterday. Instead, we need to create an immigration system that is balanced and inclusive,” said AILA President Laura Lichter. She continued, “At the hearing, we heard about the importance of border security and need to make our borders more secure, despite the fact that there have been billions of dollars invested and that the benchmarks established by each of the Senate immigration reform bills of 2006, 2007 and 2010 have been essentially met or exceeded. With immigration enforcement occurring at unprecedented levels, our country must address the needs of the 11 million undocumented residents, their families, and employers.”

Ms. Lichter noted, “Keeping all families strong and united is a core national value and interest, and we must continue our historic commitment to those values. We should not increase employment visas at the expense of reducing visas in family categories. Our immigration system must be flexible and capable of meeting the needs of American businesses and families.

“One important topic that didn’t seem to get much attention at the hearing was that we are currently denying basic due process to millions of people who live in the U.S. Long-time residents are subject to deportation even when they have strong ties to the community, pay taxes, and desperately want to become full-fledged members of our society. Many are eligible to apply for legal status, but because they lived in the U.S. for a period of time that was unauthorized they are now barred from fixing their status. Judges often have no ability to weigh the individual circumstances of the case while low-level officials often act as judge and jury, and the federal courts have been denied the power to review most agency decisions. Congress should restore fairness and flexibility to our system by authorizing immigration judges and officials to exercise discretion in considering the individual circumstances of each case,” she concluded.

AILA encourages lawmakers to commit to informed discussions that will shape a common sense immigration policy that helps to rebuild America’s economy, recognizes the contributions of immigrants, keeps families together, and strengthens America’s security.

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

The American Immigration Lawyers Association Liaison has confirmed with the State Department that reports of EB-2 India becoming current in the February 2011 Visa Bulletin are erroneous. The U.S. Consulate in Mumbai posted February 2011 cutoff dates indicating that India EB-2 is current. The State Department has clarified that the Mumbai posting was incorrect.

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